Supreme Court New South Wales Medium Neutral Citation: Application of David Kerr [2017] NSWSC 611 Hearing dates: 09/05/2017 Date of orders: 09 May 2017 Decision date: 09 May 2017 Jurisdiction: Equity Before: McDougall J Decision: Trustee should have the further advice sought. Catchwords: Trust and trustees – judicial advice – to enter into litigation funding agreement – no question of principle Cases Cited: Application of David Kerr [2017] NSWSC 358 Category: Procedural and other rulings Parties: David Kerr (Application) J Lockhart SC (intervenor) Representation: Counsel: D Sulan (Applicant) J Lockhart SC (Intervenor) Solicitors: Piper Alderman (Applicant) Gilchrist Connell (Intervenor) File Number(s): 2016/385969 Judgment (EX TEMPORE – REVISED 9 MAY 2017) 1. HIS HONOUR: On 23 March 2017, I heard an application for judicial advice. I decided, by reasons published on 6 April 2017 ([2017] NSWSC 358), that I would give some of the advice sought, but that I was not satisfied as to a particular aspect of the application. Thereafter, the applicant brought in orders, the effect of which was to require disclosure to interested parties of the further information, the non-disclosure of which had caused me to withhold part of the advice sought. 2. The applicant has complied with the orders. The consequence, in my view, is that those interested (the covenantholders, as they are known) have now been given information sufficient to enable them to express a view on the merits of the applicant's position, should they wish to do so. The result has been that one covenantholder has responded, and his concerns, although no doubt heartfelt, do not really touch on the matters that caused me to require the provision of further information. 3. In the circumstances, I am satisfied that the plaintiff is entitled to the specific advice that he now seeks. 4. That leaves the question of costs. The plaintiff seeks that its costs and the costs of the Trustee of the Scheme be paid out of the assets of the Scheme. I have some hesitation in making that order for the further costs of the Trustee of the Scheme, because in reality it could be said that there was no need for it to be represented today. However, Mr Lockhart of Senior Counsel, who appeared for that Trustee, has persuaded me to the contrary. He submitted that if there were some residual concern, it is at least possible that his client could have put submissions that would have assisted alleviating that concern. The fact that, in the result, there was no further concern should not be held against his client. 5. Accordingly, I make orders in accordance with paras 1 and 2 of the Short Minutes of Order initialled by me and dated today's date. I direct that the exhibits on the application be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2017